Courts - Illinois Forget high tech, jurors and judge stick to notes

By Don Babwin

Associated Press Writer

CHICAGO (AP) -- In an age when palm-sized computers can fire off electronic messages and cell-phone cameras instantly transmit images, judges communicate with deliberating jurors as teenagers used to do in homeroom when the teacher wasn't looking: They pass paper notes to each other.

Except sometimes they appear not to be using the same language. With judges using stilted legalese and jurors writing in awkwardly formal English, miscommunication can be common.

Jurors in former Illinois Gov. Rod Blagojevich's corruption case returned to court Monday for their 13th day of deliberations after their attempts to communicate with Judge James B. Zagel left the judge, attorneys and others scratching their heads.

In one of two cryptic notes, jurors asked what should happen if they couldn't agree "on given counts." The judge's careful response -- negotiated with the attorneys -- was complex enough to give a law professor pause.

While seemingly archaic, the note passing is actually a modern practice that evolved as judges sought to limit appeals based on what they tell juries. But the exchanges can breed problems in a legal system that is a collision of two worlds -- one occupied by judges and lawyers, and the other by laymen who are called upon to sit in judgment.

"There's plenty of evidence ... that both parties don't understand what the other is getting at," said Shari Diamond, a Northwestern University law school professor who has written extensively on juries and jury instructions. "If my students couldn't directly ask me a question and I couldn't directly answer them, it would impair their ability to learn as much as they might from me."

It wasn't always this way. Lawrence Friedman, a legal historian at Stanford University, said in the 19th century judges "really did explain things to the jury, not just read them."

That system evolved over the years to a much more formal system in which judges grew more concerned about having their decisions questioned. They started sticking to what amounted to a legal script, reluctant to improvise because any ambiguity in jury instruction could give attorneys fodder for an appeal.

"Judges didn't want to be reversed," he said.

The note passing is just one practice that complicates deliberations for jurors. Over the years, there have been efforts to make things easier, but change comes slowly.

Nancy Marder, a professor at Chicago-Kent School of Law and director of the schools jury center, points out that the practice of giving each juror his or her own copy of jury instructions in civil cases -- an obvious step given how complicated the instructions can be -- only started in Illinois in September 2009.

Even allowing jurors to take notes, something that seems so obviously necessary in lengthy trials, has only been going on since the 1990s, and is still not allowed in some parts of the country, Marder said.

Problems with notes between judges and juries crop up in courts around the nation. In one high-profile corporate fraud case in Alabama, confused and deadlocked jurors sent a handwritten note to a federal judge requesting explanation of a conspiracy charge "in layman terms."

Four years ago, in the trial of former Illinois Gov. George Ryan, it was through a note that the judge and attorneys first learned how bad things were going for the jury. In one note, eight jurors told of how one juror was "intentionally antagonistic, goads others into verbal fights." The lone juror fired off a note of her own, complaining about jurors "shouting profanity and personal attacks." That juror was ultimately removed for not revealing her arrest record.

The paper messages can be exasperating for jurors. Each note can lead to a meeting between the judge and the lawyers to discuss the exact wording of the response, which can take hours -- or more -- to arrive.

"They go to the judge for guidance and they don't always get that," said Marder. "Sometimes that's why a jury will stop sending notes when they decide it is more trouble than it's worth."

That, Diamond said, may be the point.

"They (judges) would rather not have a jury ask a question, because there is some potential that their answer could lead to a successful appeal," said Diamond.

The fact is, judges know they are safer if they just stick to the language of the initial jury instructions when they are asked questions, said Bethany Dumas, a University of Tennessee linguist who has studied and written about legal language and jury instructions.

She said that's why judges often simply rewrite the legal instructions in their responses, or call jurors out into court and read the instructions verbatim.

Efforts are under way to make jury duty more user-friendly, including encouraging judges to talk to jurors rather than sending notes.

States including California have adopted "plain English" jury instructions. Tennessee has eliminated the word "captious" from its jury instruction about reasonable doubt.

"It sort of means 'arbitrary,' but nobody knows what it means (so) they got rid of it," Dumas said.

In Arizona, Marder said, when jurors tell the judge they are at an impasse in deliberations, judges are allowed to ask about their specific concerns and offer additional argument or explanation to facilitate the process.

In some states, but not Illinois, judges are allowing jurors to submit -- in writing, of course -- questions they would like to ask witnesses themselves.

"Rather than remain confused, they can get their question answered," she said. Further, it turns sometimes passive and occasionally sleeping jurors into participants in the legal process.

"They are engaged," she said. "They're paying attention (because) you're treating them like adults."

Published: Tue, Aug 17, 2010